The terms and conditions set out below apply to the services made available to you by us, so please read them carefully.
- DEFINITIONS AND INTERPRETATION
- In these terms and conditions, the following terms shall have the following meanings:
“Account” means, collectively, the personal information, payment information and credentials required to be submitted by users in order to make use of the Software and the Services;
“Business Day” means any day which is not a Saturday, Sunday or public holiday in England and Wales;
“Conditions” means these terms and conditions of supply;
“Confidential Information” means any information disclosed by one party to the other party and marked as confidential, described as confidential, or otherwise reasonably understood or supposed to be confidential;
“Contract” means the binding contract which shall arise between you and us once we issue you with an Order Confirmation, subject always to the provisions of clause 3.2;
“Data Protection Law” means the General Data Protection Regulation 2016/679 (GDPR) or any equivalent provision which may replace the GDPR following the formal political separation of the United Kingdom from the European Union; the Regulation of Investigatory Powers Act 2000; the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699); the Electronic Communications Data Protection Directive (2002/58/EC); the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003); and all applicable laws and regulations which may be in force from time to time relating to the processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction; and data controller, data processor, data subject and personal data shall have the meanings given in the Data Protection Law;
“Device” means the computer, smartphone or tablet used by you to make use of the Software and the Services;
“Fees” means the Subscription Fee and any charges for any additional services supplied by us to you;
“Initial Subscription Period” means the initial period of your Subscription and minimum term of the Contract specified in the Order Confirmation during which we are to provide the Services to you, subject to the provisions of clause 6.1;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights, including copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, rights in software, semi-conductor topography rights and rights in designs;
“Machines” means those items of monitoring equipment owned, controlled or operated by you and which may be deployed by you in conjunction with the Services under the Contract;
“Notice Period” means the period of notice specified in the Order Confirmation required to be given by either party to the other in order to terminate the Contract in accordance with the provisions of clause 6.1;
“Order Confirmation” means our written confirmation of acceptance of your order;
“Renewal Period” means a period of equal duration to the Initial Subscription Period (with the first such Renewal Period commencing immediately upon the expiration of the Initial Subscription Period) during which we are to provide the Services to you, subject to the provisions of clause 6.1;
“Services” means the Software Services and the Support Services, together with any separately chargeable additional services;
“Software” means our security monitoring software which is hosted at our data centre and which will be made available to you as a downloadable software application, or which will otherwise be made available to you in any other form or manner determined by us;
“Software Services” means the security monitoring software services provided by us to you in accordance with the details of your particular Subscription and which are accessed via the Software and our site;
“Subscription” means the package of licenses required to access the Services;
“Subscription Fee” means the fee required to be paid by you to enable you to make use of the Software Services and the Support Services and which will vary depending upon the number of Machines required to be deployed by you in conjunction with the Services;
“Support Hours” means 09:00 to 17.00 on Business Days and such other times as may reasonably be stipulated by us for the provision of emergency support;
“Support Services” means the services provided by us to you to support the Software Services;
“User Data” means data pertaining to a user which is provided to us by you or which is otherwise obtained by us;
“Work” means all works and materials uploaded, downloaded, imported, exported, submitted, processed, stored, transmitted, sent or received using the Software or the Services by or on behalf of any user or by any person using the user’s Account, or by any automated system deployed on the user’s Account;
“we”, “us”, “our” means CheckMySystems Limited;
“you”, “your”, “user” means the person, firm or company who enters into a Contract with us.
- A reference to a clause is to a clause of these Conditions. Clause headings shall not affect the interpretation of these Conditions.
- Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
- A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
- Words in the singular include the plural and in the plural include the singular.
- Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.
- INFORMATION ABOUT US
- checkmysystems.com is a site (our site) owned and operated by CheckMySystems Limited. We are registered in England and Wales under company number 7164459 with our registered office at Bank House, Market Square, Congleton, Cheshire CW12 1ET, United Kingdom and main trading address at 16A The Square, Holmes Chapel, Cheshire CW4 7AB, United Kingdom.
- SUBSCRIPTIONS AND ORDERS
- When we accept your order for a Subscription, an Order Confirmation will be issued to you, which will include information regarding your Subscription, the Subscription Fee and details of your payment date(s). A Contract will only arise upon issuance of an Order Confirmation. The Contract shall be subject to these Conditions, to the exclusion of all other terms and conditions. For the avoidance of doubt, nothing in this clause 3.1 shall oblige us to accept any order placed by you.
- You may choose to add or remove any Machines from your Subscription at any time; you acknowledge that this will alter the details of your Subscription and will also cause your Subscription Fee to change.
- You will be solely responsible for checking the details of your Subscription from time to time and for ensuring that your Subscription Fee payments correspond to the number and type of Machines allocated to your Subscription.
- An Account must be created in order to facilitate use of the Software and the Services. When an Account is created you represent and warrant that:
- all information submitted is accurate and truthful;
- you will keep this information accurate and up-to-date;
- you will keep your Account details confidential and you will not reveal your username and password to anyone; and
- you will notify us immediately by email if you know or have reason to suspect that your Account details have been compromised or misused or are being used by anybody else without your authorisation; and
- you agree to indemnify and hold us harmless from any loss or damage incurred by you from any misuse of your Account whatsoever, howsoever and by whomsoever occurring.
- FEES AND PAYMENT
- All Fees will be as quoted by us from time to time, except in cases of obvious error.
- All Fees are payable in UK Pounds Sterling and are exclusive of any applicable UK VAT.
- We accept payment by Direct Debit for Subscription Fees. For non-Subscription services, we accept BACS transfer. We also accept payment by debit or credit card.
- Payment for the Subscription Fee will become due on the date(s) stipulated in the Order Confirmation, subject to the provisions of clauses 3.2 and 3.3. Payment of all other Fees shall fall due on the date(s) notified by us to you.
- Time shall be of the essence with respect to all payments required to be made pursuant to clause 5.4.
- We reserve the right to charge interest on any amounts unpaid by you by the due date for payment, at the rate of 5% per annum above the base lending rate from time to time of the Bank of England, from the due date until the date of payment.
- Without limiting the generality of clause 5.1, we reserve the right to increase the Subscription Fee from time to time. The details of any such increase will be notified to you by email.
- The Subscription Fee is not in any way dependent on or linked to the extent of your usage of the Services. Even if you do not make any use of the Services for a protracted period, the Subscription Fee remains payable in full and no refund shall be given.
- Subject to earlier termination under clause 10, the Contract shall remain in force for the Initial Subscription Period and thereafter for successive Renewal Periods (subject to the payment of the Subscription Fee for each such successive Renewal Period), unless the Contract is terminated by one of the parties to the Contract giving to the other notice of termination in compliance with the Notice Period, such Notice Period to expire on the last day of the Initial Subscription Period or the last day of the relevant subsequent Renewal Period, as applicable. If you wish to terminate the Contract other than in accordance with the provisions of this clause 6.1, you shall pay to us an amount equal to any Subscription Fee (or part thereof) which would have been due to us under the Contract until the end of the Initial Subscription Period or the end of the relevant subsequent Renewal Period, as applicable. You acknowledge that any action by you under clause 3.2 may serve to vary any Initial Subscription Period and/or successive Renewal Period.
- THE SERVICES
- In consideration for the timely payment of all sums payable to us by you under the Contract and subject to your adherence to all other provisions of these Conditions, we grant you a non-exclusive, non-transferable and revocable licence to use the Software and the Services for your internal business purposes. We reserve all other rights.
- Your use of the Services shall be in accordance with the details of your particular Subscription and shall be subject to the applicable limitation on the number and type of Machines.
- You shall be responsible for providing and maintaining, at your sole cost, any necessary Internet and telecommunications systems connectivity in order to enable us to provide the Services to you.
- You shall promptly provide us with any co-operation or information that is reasonably requested by us in relation to the provision of the Services to you.
- You shall observe such instructions and directions regarding access to and use of the Services as may be communicated to you by us from time to time.
- You shall not misuse the Services by interfering with them in any manner or by attempting to access them other than in accordance with the instructions that we provide. You may use the Services only as permitted by law. Without limiting the generality of the foregoing, you shall not use the Services for timesharing or service bureau purposes. Users are not permitted to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material or to send unsolicited email or “spam”. Subject to the provisions of clause 7.6, you may not refer to the Services (nor make use of any content, information, material or results that may be obtained from the use of the Services) in any advertising or publicity material without our prior written consent.
- You are solely responsible for all Works and their content and for all activity carried out through your Account.
- You shall be solely responsible for the correct and proper management of each Work and for ensuring the accuracy and completeness of each Work.
- You shall ensure that no Work is unlawful, threatening, offensive, libellous, defamatory, obscene, scandalous, inflammatory, insulting, pornographic, or profane, nor contains any other content that could give rise to any civil or criminal liability under law.
- You shall ensure that no Work contains any material which may amount to an infringement of the Intellectual Property Rights or other rights of any third party.
- We will provide an email and telephone helpdesk facility during the Support Hours to enable you to contact us in relation to issues which may arise in relation to the Software Services.
- Any out-of-hours support or on-site support requested by you shall not be included in the Support Services but will be deemed to be a separately chargeable additional service.
- We will use reasonable endeavors to respond to all requests for the Support Services within the Support Hours but all timescales are estimates and time shall not in any event be made of the essence in the performance of the Support Services.
- We will use reasonable endeavours to resolve issues relating to the Software Services but no representation or warranty is given by us that all faults will be fixed or will be fixed within a specified period of time.
- You shall:
- notify us promptly of any fault with the Software Services;
- inform us of any proposed change to your network, (whether it is hardware, software or configuration changes of any kind) so that we may propose or effect any change to the Support Services which may be required;
- keep full back-up copies of all of your data and any third party data for which you have assumed responsibility; and
- keep full security copies of your programs, databases and computer records in accordance with best computing practice.
- CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
- You and we each agree that neither party shall use any Confidential Information other than to perform its respective obligations under the Contract. Each party will maintain the Confidential Information’s confidentiality and shall not communicate or disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a legal duty to communicate, or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party.
- All and any Intellectual Property Rights in or related to the Software, the Services and our site (whether currently existing or arising in the future) shall belong to and shall remain the property of either us or such other third party as has granted use of such Intellectual Property Rights to us and subject to clause 7.1, nothing in these Conditions shall grant, assign or transfer any Intellectual Property Rights in or related to the Software, the Services or our site to you.
- You may not copy, reproduce, modify, re-publish, make available, disseminate or distribute any part of the Services other than in accordance with the features and requirements of your particular Subscription and you may not in any way sub-licence, sell or lease any part of the Services.
- You shall not attempt to decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, nor may you attempt to extract the source code of the Software.
- You may not violate or attempt to violate the security of our site or the Software or the Services in any manner.
- You shall not hack into our site, our computer systems or the computer systems of other users. Hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, Trojans, worms or other types of malicious programs, deliberate attempts to overload a computer system via a denial-of-service attack or a distributed denial-of service attack, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website. By breaching any of the foregoing provisions of this clause 8.6, you would be committing a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them.
- Nothing in these Conditions shall grant you the right to use any branding or logos used by us in relation to the Software or the Services. You are not permitted to remove, obscure or alter any such branding or logos.
- You acknowledge that all and any Intellectual Property Rights in any Work shall, as between you and us, be deemed to be owned by or validly used by you. You hereby grant a licence to us to make use of any Work in any manner which we reasonably deem fit, which shall include deleting any Work which we reasonably consider to be in contravention of any of the provisions of these Conditions, notwithstanding that we do not purport to monitor the content of any Work.
- You agree to indemnify and hold us harmless against all claims, demands, actions, costs and expenses which we may incur resulting directly or indirectly from any Work, including any third party claim that the use of any such Work infringes that third party’s Intellectual Property Rights and/or other rights.
- WARRANTIES, LIABILITY AND INDEMNITY
- We will provide the Software and the Services to you using reasonable skill and care.
- All representations, warranties and terms not expressly set out in these Conditions (whether implied by law, conduct or otherwise) are hereby excluded to the maximum extent permissible by law.
- We do not warrant that:
- the Software or the Services will meet your particular requirements;
- the use of the Software or the Services will be uninterrupted or error-free;
- any content, information, material or results that may be obtained from the use of the Software or the Services will be accurate, reliable or complete or will meet your particular requirements.
- Without limiting the generality of clause 9.3 above, we make no warranty or representation that the Software or the Services can be accessed or used at all times. The Software or the Services may be temporarily unavailable or restricted for administrative or maintenance purposes or for other reasons and we do not accept any responsibility and will not be liable for any loss you suffer arising out of or in connection with your loss of access to or use of the Software or the Services.
- You agree and acknowledge that:
- all warranties, representations, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law;
- we shall not be liable to you if any monies due from you to us have not been paid in full;
- we shall have no liability to you for any:
- consequential losses;
- loss of profits and/or damage to goodwill;
- economic and/or other similar losses;
- special damages and indirect losses;
- business interruption, loss of business, contracts and/or opportunity; and/or
- inconvenience, delay or loss of production;
- our aggregate liability to you (whether for breach of Contract or for negligence or otherwise howsoever), for any loss or damage of whatsoever nature and howsoever caused, shall be limited to and in no circumstances shall exceed the amount of the Subscription Fee paid to us for the Initial Subscription Period.
- Nothing in these Conditions shall exclude or limit in any way our liability:
(a) for death or personal injury caused by our negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) for any matter for which it would be unlawful for us to exclude or limit our liability.
- You acknowledge that no information obtained through access to or use of the Services constitutes advice and that you will not treat any information that may be obtained from the use of the Services as such.
- We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your Device, computer programs, data or other proprietary material due to your use of the Software or the Services or to your downloading of any related content.
- You are solely responsible for checking for viruses and malware in any files that you upload to or download from your Account. We cannot guarantee that any file or program available for download and/or execution via use of the Software or the Services is free from bugs, viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all programs and files associated with the Software and the Services.
- You acknowledge, understand and agree that use of the Internet might not be secure, and you accept the risk that unauthorised persons might be able to intercept or access information transmitted through the Internet. You accept full responsibility for emailing any information via use of the Services and for ensuring that all such information reaches the intended recipient of such information. We shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet. A stable connection to the Internet is required. You accept that your use of the Software and the Services may be restricted or limited when there is no stable connection.
- You must ensure that your Device meets any appropriate technological requirements as may be specified by us. We make no warranty as to the suitability or otherwise of your Device, which is your responsibility alone. You accept that full functionality of the Software and the Services cannot be guaranteed.
- Technological changes from time to time may make your Device obsolete or otherwise unsuitable to be used to access the Software or the Services. You will be solely responsible for providing, updating, or replacing any part of your Device and for any telecommunications and other related costs. We reserve the right to make changes to the Software and the Services at any time. This may also require you to update or replace your Device.
- We shall not be responsible for any failure of or damage to your Device which results from your accessing or using the Software or the Services.
- You shall hold us harmless from and shall indemnify us and keep us indemnified against any claim, action, settlement or proceedings arising from or related to the use of the Software or the Services by you other than in accordance with the provisions of these Conditions, or arising from or related to your negligence or intentional acts or any breach of the Contract or these Conditions by you, including all and any charges, costs and expenses arising from any claims, losses, damages, judgements, litigation costs and legal fees.
- Where you are to host the Software and the Services for your own clients:
- you shall put in place a set of terms and conditions between yourselves and your clients which are at least as onerous as these Conditions; and
- the indemnity granted to us by you under clause 9.14 shall be extended to cover any use of the Software or the Services by your clients.
- Notwithstanding anything else contained in these Conditions, the Contract may be terminated by us with immediate effect upon written notice to you, if:
- you commit any breach of any of your obligations under the Contract (and if the breach is remediable, fail to remedy the same within seven days of receipt of a written notice from us specifying the breach and requiring it to be remedied); or
- any payment due under the Contract is more than seven days in arrears; or
- you enter into insolvency proceedings or become bankrupt or make a voluntary arrangement with your creditors, or go into liquidation or have a receiver or administrator appointed, or we have reasonable grounds to believe that any such event is likely to occur.
- On termination of the Contract under clause 10.1 for any reason you shall pay to us (within 14 days of the date of termination) an amount equal to any Subscription Fee (or part thereof) which would have been due to us under the Contract until the end of the Initial Subscription Period or the end of the relevant subsequent Renewal Period, as applicable.
- Termination of the Contract (howsoever occasioned) shall not affect any accrued rights or liabilities of either party hereunder or at law, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or to continue in force on or after such termination.
- The right to terminate the Contract given by this clause 10 shall not prejudice any other of our rights or remedies against you in respect of the breach concerned, or any other breach.
- If the Contract is terminated in accordance with this clause 10 or otherwise in accordance with clause 6.1, the license granted to you by us under clause 7.1 will be automatically revoked.
- DATA PROTECTION
- For the purposes of the Contract, we (and/or any subcontractor appointed by us as a sub-processor of User Data under the Contract) will be acting as a data processor on your behalf with respect to the User Data, whilst you shall remain at all times the data controller with respect to the User Data. The parties acknowledge that some User Data will contain personal data.
- For the purposes of the Contract, we will process the User Data only in accordance with your instructions and in compliance with the Data Protection Law and otherwise as necessary to perform our obligations under the Contract.
- You represent and warrant that you have obtained the necessary consents, permits and authorisations to enable us to process User Data on your behalf and that you shall comply with the Data Protection Law in your use of the Software and the Services and the processing of the User Data by us on your behalf.
- We will implement technical and organisational measures to ensure the security of the User Data and such measures will conform to the requirements of the Data Protection Law; details of said measures will be provided to you upon request and you are responsible for satisfying yourself that these measures are appropriate.
- We shall assist you in complying with your obligations under the Data Protection Law, including assisting in responding to requests by data subjects and supervisory authorities to the extent reasonably necessary. We shall notify you of any data breaches concerning personal data. We shall be entitled to charge for any reasonable costs and expenses incurred as a result of such assistance where any data breach is or may be attributable to you.
- We shall make available to you information reasonably necessary to demonstrate compliance with the Data Protection Law and will contribute to audits conducted by you or your representative in relation to the processing of personal data by us. We shall be entitled to charge for any reasonable costs and expenses incurred by us.
- We shall not be responsible for any loss, destruction, corruption, alteration or disclosure of User Data caused by any third party not appointed by us as a sub-processor of User Data under the Contract.
- On the termination or expiry of the Contract, we shall, at your election, arrange for the User Data to be destroyed or transferred to you. We shall be entitled to charge for any reasonable costs and expenses incurred by us.
- WRITTEN COMMUNICATIONS
- Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our site. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.
- All notices to us shall be in writing and shall be made either via e-mail or post to the addresses in the Contact Us section of our site. We may broadcast notices or messages through our site or contact you by email and notification by either of these methods shall constitute notice to you.
- TRANSFER OF RIGHTS AND OBLIGATIONS
- Any Contract between you and us is binding on you and us and on our respective successors and assigns.
- You shall not assign or delegate all or any of your rights or obligations under the Contract without our prior written consent, such consent not to be unreasonably withheld.
- We reserve the right to assign, subcontract or transfer all or any of our rights and obligations under the Contract to any person, firm or company without notice to you.
- EVENTS OUTSIDE OUR CONTROL
- We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by events outside our reasonable control (Force Majeure Event).
- A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
- strikes, lock-outs or other industrial action;
- civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
- fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
- impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
- impossibility of the use of public or private telecommunications networks (including Internet connection failure); or
- the acts, decrees, legislation, regulations or restrictions of any government.
Our performance under a Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
- If we fail at any time to insist upon strict performance of any of your obligations under the Contract or any of these Conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
- A waiver by us of any default shall not constitute a waiver of any subsequent default.
- No waiver by us of any of these Conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 13 above.
- If any of these Conditions or any provisions of the Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
- ENTIRE AGREEMENT
- These Conditions and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
- You and we each acknowledge that, in entering into a Contract, neither of us has relied on any representation, undertaking or promise given by the other or be implied from anything said or written in negotiations between us prior to such Contract except as expressly stated in these Conditions.
- No Contract shall be deemed to create any relationship of agency, partnership, joint venture or employment between you and us and you shall have no authority to bind us in any respect whatsoever.
- OUR RIGHT TO VARY THESE CONDITIONS
- We have the right to revise and amend these Conditions from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
- You will be subject to the policies and Conditions in force at the time that you place your order with us, unless any change to those policies or these Conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these Conditions before we send you our Order Confirmation.
- LAW AND JURISDICTION
- The Contract shall be governed by English law. Any dispute arising from, or related to, the Contract shall be subject to the non-exclusive jurisdiction of the Courts of England and Wales.